Monday, June 17, 2024

We need to learn, again, how to think

I don't think the parliamentarians of the National Assembly will heed the call and #RejectFinanceBill2024. They will tinker. They will vacillate. They will fulminate fulsomely. They will vamp for the cameras. But they will absolutely, definitely not reject the Finance Bill. They will, instead, vote overwhelmingly for the tax proposals contained in the Bill. Not one tax will be rescinded. Not one exemption that has not been approved by the grandees of the IMF will be granted. The hundreds of billions that the National Treasury is looking to raise from the Bill is all that will occupy the minds of the worthies of the National Treasury.

The challenge that the prospective maandamano face tomorrow has been occasioned by a poor understanding of the budgeting process and deliberate vagueness by the mandarins of the National Treasury. More and more Kenyans are familiarising themselves with the ins and outs of the Public Finance Management Act on which the budget process relies. They have a working understanding of when the Finance Bill (and the accompanying budget documents including the Appropriation Bill, Estimates of Revenue and Expenditure, Budget Policy Statement and Budget Review Outlook Paper) is supposed to be introduced in the National Assembly.

But they don't have working knowledge of how and when the tax proposals contained in the Finance Bill are made. They'd on't know who is consulted or how. They don't know how the nabobs of the national government pick which tax proposals to adopt and which ones to bin. They have no idea how the President's Council of Economic Advisors pick which industries to promote, which ones to let sink or swim, and which ones to roll back. They don't know whether or not the decision to impose a new tax is a legal issue or an economic issue. All they know, for now, is that the Budget is sent to Parliament on the 30th April of each year and enacted not law on the 30th June of each year.

That kind of ignorance is unhealthy. It allows conspiracy theorists with axes to grind to plant disinformation and misinformation, foment disaffection among the people not just for their government but their fellowman, and spread chaos abroad in the land. It is an historical irony that in the digital age, so many more people know so little about their government and how it functions.  With so much information at our fingertips, literally, it is amazing how easy it is to sow confusion by dropping a few tasty conspiratorial statements into the ether and watch an entire nation freak out over shit they should absolutely, definitely ignore.

When it comes to matters which we must hold our elected and appointed government officials to account, we need to be more strategic and intentional in which information we focus on and what we ignore. This is made harder when every institution designed to educate and inform has been hollowed out by greed and corruption. It falls on individual effort, but that effort is so much the harder when we are bombarded with distractions all day long. #RejectFinanceBill2024 has in all certainty been infested by the forces of chaos and confusion. While it will go off without a hitch (taking into account Kenya's rung-wielding police tendencies), it will not lead to an abrogation of the Finance Bill. It would behoove us to teach ourselves, afresh, how to think.

Thursday, June 13, 2024

Omtatah's legacy

Senator Okiya Omtatah Okoiti, MP, has contributed immensely to the principle of participation of the people as contemplated in Article 10 of the Constitution. Through his public interest suits in the Constitutional Court, he has helped to demystify what the State can and cannot do. In the years since he was elected as senator, he has turned his public-spirited focus on the national Budget. Whether or not he has a firm understanding of the constitutional and statutory framework underpinning the budget process is irrelevant; he has compelled the Government and citizen alike to pay attention to sometimes hard to grasp concepts relating to the raising of national revenue, the appropriation of public funds, the allocation of public money to public goods and services, and the role of the citizen.

His success in the Constitutional Court in 2023 is a testament to how much even the Judiciary has come to appreciate the role of the citizen in budget-making. The injunction on the implementation of various sections of the Finance Act, 2024, have concentrated some minds, while others are still stuck in the pre-2010 constitutional past, where they imagine fiat is all that is needed to get things done.

In 2023, when the National Treasury proposed the "affordable housing levy", bar one or two misguided trade union bosses, Kenyans rejected the levy in toto. They said so unequivocally. The Finance and Planning Committee of the National Assembly pretended to take the people's objections to heart. But rather than remove the offending proposed law from the Finance Bill, they made it even more draconian: a mandatory tax without even the possibility of a refund or the certainty of access to an affordable house by the taxpayer. That dishonesty is partly why the High Court declared the affordable housing tax to be unconstitutional and annulled it. The Court of Appeal after the traditional period of stay of orders pending appeal had lapsed, was not convinced to extend the stay, and the offending tax was abolished. It has resurfaced as a law unto itself (and Sen. Omtatah is fighting that one as well in the Constitutional Court; may he taste victory once more and have the Affordable Housing Act, 2023, annulled by the Constitutional Court, again).

In 2024, seemingly without having taken heed of the lessons of 2023, the National Treasury has proposed a motor vehicle tax (previously christened "motor vehicle circulation tax"). The rate is set at 2.5% of the value of the motor vehicle, with a floor of 5,000 shillings and a ceiling of 100,000 shillings. Every single Kenyans who has been asked (bar one or two truly misguided souls) has rejected the tax, the rationale for the tax, and all exhortations to see it as a net-positive good. The Finance and Planning Committee, once again, pretends to care to listen to the vehemence expressed by Kenyans against the proposed tax (and all the other retrogressive tax proposals contained the Finance Bill, 2024). Kenyans await with bated breath the Report of the Committee on the Bill that is going to be tabled in the National Assembly at the Second Reading.

What is becoming increasingly clear is that Kenyans are taking ever keener interest in how the Government makes decisions. While the organs of Government are yet to fully embrace more direct participation of the people in their affairs, some of them have began to change the way the decide matters affecting Kenyans' lives. They are inviting, and incorporating, more public input on policy, legislative and regulatory proposals than in the past. This may complicate Government decision-making, especially with regards to its foreign obligations, but no one can argue that it is a net-negative thing. The whole point of participatory democracy, the kind contemplated by the Constitution, is that the purpose of the State is to serve the public good, rather than the State serve itself with or without the permission of the public. Sen. Omtatah is unlikely to be celebrated in full in his lifetime, but may his public-spirited legacy last a millennium.

Sunday, June 09, 2024

My life today is the Mary Celeste

I have been staring at this official document for the better part of eighteen hours now. I am red-eyed, wired, tired and a little pissed off. It used to be that when I told you the job was done, it really was done. We did not do a back-and-forth to determine whether what you wanted me to do had, indeed, been done. We always, ALWAYS, sorted out our full instructions before legislative drafter put fingers to keyboard and gave you a legislative text.

These days, though, MFs think they can ice-skate uphill.

There is much to be appreciative of the Kibaki presidency. The spoors of his economic successes are plain to track. However, he seeded the policy-making ground with bad habits, the worst being the Facebook-ish move-fast-and-break-things mantra. Governments are not meant to make decisions with haste, except when the enemy is dropping bombs on citizens. In every other respect, the Government is supposed to think through the risks-versus-benefits checklist before making a decision, especially a decision that puts lives and national treasure in the frying pan.

Lawyers like me are supposed to be called in when all Government’s ducks are in a row.

The number of decisions needed to get from a policy idea to a legislative text is long, and complex, and highly technical. None of the steps is to be taken without a high degree of certainty. By the time I, or people like me, write a legislative sentence of any import, ten times more difficult technical work has been done to make sure that the policy, the politics, the law and the money have been thought about and sorted. Any change to the legislative text is akin to abruptly changing direction by a VLCC - Very Large Crude Carrier. In other words, it should not be done without good and sufficient cause.

So…back to what is becoming a common Sunday for the likes of me, these days.

My colleagues and I put down in writing about 34,000 words at the end of April. In my estimation (nevermind the various angry publics who were deeply unhappy by our legislative text), we did an excellent job. We followed the rules. We have absolutely no dog in whether or not the text is enacted in the form we released it to our client. We should have been done with this shit a month and a half ago! But 40 days later, we are tinkering with it because the policy assumptions from way back when are being revised, and those revisions are necessitating changes to our text, changes that are not based on any kind of logic than “I said so!” I feel like I am the last survivor on the Mary Celeste.

My life has taken a backseat; one of the reasons it fell apart in late 2019. I have not had a chance to properly mourn the passing of two women who meant more to me than any other woman except for my mum. Every now and then, when the clouds part and I have a free three minutes to sit with my thoughts, my mind, memories and soul are engulfed in the pain of the deaths of the woman who tended to my every need when I was a newborn child and the woman who got me my Bachelor of Laws degree (and the BA that came along with it). I have tried to cry, but I have found narcissistic work-related reasons not to.

And so…

I am going home. To eat food I won’t notice, and sleep for hours that will never be enough, in the hopes that my mind will quiet down long enough that I won’t feel like committing some dreadful crime. I want to rejoin what is left of my life. I don’t think my therapist and I have found the right language to tell my extremely sensitive ass that I can. Or should. Tomorrow is a new day. So long as I still a have the ability to see it as a fresh start, I will probably be OK.

Monday, June 03, 2024

History's accolades and brickbats

There are over three hundred parastatals in Kenya. Almost one-quarter were established after 2013. The economic rationale for their establishment was never established but their political value is incalculable. Mwai Kibaki's rising tide didn't have to seriously contend with the value-for-money proposition of parastatals so he did nothing. Uhuru Kenyatta's sinking boat most definitely did, so he appointed a task force to advise on the necessary reforms. It is now common knowledge that among the recommendations of the task force was the merger of some and the winding up of others. Uhuru Kenyatta binned the report and went on a parastatal-making spree.

It is now William Ruto's turn at the wheel. He has committed himself to reforming parastatals by, among other things, winding up the loss-makers and other redundant parastatals. It will be a testament to his ability to play hopscotch in the political arena if he shuts down any without eliciting a political rebellion in all his backyards.

So far, the signs are not promising. You only have to look at the chequered attempts to off-load state-owned sugar manufacturers, and President Ruto's part in them, to see that the hot potato in his hands can cause damage. The economic value in state-owned sugar manufacturers dissipated the moment sugar-producing zones were saddled with more factories than they could economically support. Private factories have undermined the economic value of the state-owned ones for decades now. Any viable reform programme would entail selling the state-owned laggards to the private upstarts, and consolidate sugar-producing zones in the hands of three or four players. But the elected parliamentarians who make hay by promising jobs for their constituents in the factories and outgrow farms will not let the president sell the factories without a fight. And they fight dirty.

The National Treasury is in an unenviable position. In order for it to successfully reform parastatals, it must have a free hand to pick winners and dump losers. That free hand comes with enormous political power; by picking winners, the National Treasury guarantees political glory for the parliamentarian in whose constituency the winner is found. By offloading loss-makers, the National Treasury dooms a parliamentarian to election catastrophe for failing to keep jobs and secure livelihoods for his constituents. The economic argument for keeping one parastatal and dumping another is irrelevant in the sharp-elbowed political environment Prof. Njuguna Ndung'u and Dr. Chris Kiptoo have been dumped into by the president. They will need the president's political instincts if they are to succeed where Uhuru Kenyatta flamed out so spectacularly.

The debt treadmill on which Uhuru Kenyatta deposited the government is a key reason why the Government is keen to release resources that are tied up in loss-making capital assets. The massive public debt, for which we keep borrowing even more to offset, has wrecked public investment in critical public services, including healthcare, basic education, public transport, water distribution, and environmental conservation. Unless the President can successfully demonstrate that the short-term pain of divestment will translate to greater public investment in these areas and, crucially, that such investment will lower Kenyans' cost of living, the divestment programme will not succeed. He has two presidential blueprints for economic transformation to compare his plans against: Mwai Kibaki (2003 to 2008) and Uhuru Kenyatta (2014 to 2018). History will judge whether he will receive glowing accolades à la Kibaki or savage brickbats à la Kenyatta.

Sunday, May 12, 2024

As by law established

The members of my profession, the ones with a pompous sense of importance, tend to use phrases whose value has diminished greatly since the doors were flung open and everyone and his cat got a Bachelor of Laws degree. One of those obsolete phrases beloved of the ancien régime is "as by law established". I forget the explanation for the tortured phraseology; but it captures the spirit of obdurate stubbornness a certain kind of pedantic lawyer will employ to avoid taking responsibility for anything meaningful.

Anyway, it's not the phrase that animates me today, but the remarkable tunnel vision of constitutional law scholars and practitioners. In recent months, the President and the rest of the Cabinet have announced a raft of revenue-raising measures that will impose significantly higher taxes on the vast majority of the salaried. Because of the errors committed by civil society in the past decade, the framework for public participation that should have allowed the affected taxpayers to weigh in meaningfully on the tax proposals has done little but to rubber-stamp the Government's plans.

Because of the failure of participatory decision-making in this regard, there are those who now claim, ridiculously, that the Government has not been established according to the Constitution. This is revisionist balderdash. When the Supreme Court declared that William Ruth was the legitimate winner of the presidential election, and the other courts decided the other election petitions, and the elected men and woe took their oaths of office, the leadership of the Government was absolutely definitely established according to the Constitution. Not one of the elected state officers holding office today came into office through unconstitutional means.

But because many men and women disagree with the decisions made by these elected state officers, and their failure to fashion an effective framework to hold the elected state officers to account for their decisions and actions, they have began spreading the canard that the Government has not been established according to the Constitution. The failures of civil society since the election of Mwai Kibaki in December 2002 have led us down a terrible path, a path where state officers have little to fear from civil society organisations, human rights defenders or anti-corruption crusaders.

One of the biggest disappointments when it comes to holding the Government to account is the Law Society of Kenya, a Bar association established by an Act of Parliament, and whose members are these days appointed to sit in the Boards of Government-owned entities. The Law Society will not bite the hand that feeds it. Instead, like a house pet, it will roll over on its back so that it can receive the belly rub it so desperately desires. In my opinion, the Law Society was last true to its principles in 2002; every single chairman or president, every single Council of the Law Society, every single Branch of the Law Society, and every single position adopted by the Law Society has existed single-mindedly to ensure that the Law Society, its leaders and members, receive favours from the State. In effect, the Law Society has become a Government-owned civil society organisation. It is not the only one.

Faith-based organisations, labour organisations, employers' organisations, private sector institutions, teachers' unions, even human rights defenders...all of them have become off-shoots of the Government and Government-linked organisations. It is a bit rich, therefore, for some civil society windbags to accuse the Government of not being established according to the Constitution. The past eight years have been particularly fraught when it comes to civil society organisations holding State officers to account. One after the other, men and women have brought suits against the Government for some violation of the Bill of Rights but maybe one in ten have stayed the course without striking out-of-court settlements that have lined their pockets at the expense of the public interest. These charlatans don't even have the shame to deny the charge; they admit it freely and arrogantly because mtado?

Monday, March 18, 2024

Some bosses lead, some bosses blame

Bosses make great CX a central part of strategy and mission. Bosses set standards at the top of organizations. Bosses recruit, train, and deploy employees to face customers. Bosses decide how much to spend to make things better. Bosses design processes. Bosses create response and recovery mechanisms. Bosses motivate employees to care about what happens to customers. - Sunny Bindra, What’s really wrong with customer experience? The bosses…

When the bottom line is at stake, bosses can either elevate the CX game or they can plunge the whole organisation into the ground. When the boss's fate is tied to the bottom line, he will either lead from the front or he will find scapegoats to sacrifice. It all depends on what the incentives are, doesn't it?

I have been fortunate to witness the leadership styles of several bosses at my place of work. Some were very inspirational. Many are professional scapegoat hunters. One of my favourite bosses took the time to listen to our clients' complaints, and then she would sit with us and work out why the client had a poor CX, and on the basis of that process, proposed a solution. Sometimes the solution worked. Sometimes it was a trial-and-error process until it was solved. She was firm with us, but she never shifted the blame onto us. She led us to do some amazing things, especially in designing a client management system that I have taken with me in subsequent posts.

My least favourite boss refused to take responsibility, shirked difficult decisions, and refused to discuss his proposals with anyone. Not his direct reports. Not the rank and file. Not even his peers in the organisation. He was so busy covering his ass that even obvious things fell through the cracks. What's worse, he identified a few pet employees whom he favoured over other, and they became his snitches - not for quality control purposes, but to weed out the frustrated malcontents who desired to do better and be better. Under him, CX was no longer a priority; all that mattered was that the boss was not blamed for anything. He was eventually sacked and it will take a long time to address the problems he left behind.

Being boss is frighteningly hard if one lacks the EQ to manage a diverse staff and manage the inevitable complaints from his clients. As a line manager, I want the team I manage to excel, and I want my clients to have an excellent CX. The past two years have been difficult all around and part of my job is giving clients bad news. If I didn't have faith in my team, I wouldn't have the necessary information to manage my clients' expectations, and make the experience of receiving the bad news tolerable.

While I don't subscribe to the adage that the customer is always right - in my profession, when the client walks in through the door, it is because he has been accused of doing something wrong - but I almost never dismiss my client's requests out of hand. In order to figure out what kind of service he needs, I ask a million questions, prepare a draft opinion, and  then work with the client to arrive at a common understanding of the problem and a reasonable understanding of how to deal with it. This takes time and my favourite boss understood this. She demanded speed, but never at the expense of precision. I miss her.

My least favourite boss assumed that all that hand-holding was intended to undermine him, that we were delaying solving clients' problems so that he would look bad to his bosses. As a result, he forced many of us to cut corners, with the expected outcomes: poor client experiences that eventually led to his sacking. He broke that which didn't need fixing, refused to fix it, shifted blame, and made working for him a nightmare, which made our client management suffer in the bargain. Even our clients are happy he got sacked.

So, yes, agree. A boss who wants his clients to have great CX and who is willing to do the hard work of setting the necessary standards and overseeing their implementation will almost always have grateful clients and loyal subordinates.

Tuesday, January 16, 2024

They all fall, eventually

The member of the National Assembly for Mumias East is a spectacularly unpleasant character. But he is not unique. A former member of the National Assembly for Gatundu South is just equally as unpleasant. They are not unique. They are not even unique in the nasty, overbearing, narcissistic and hubristic way they go about generating publicity for themselves. They are just extreme examples of their fellow parliamentarians, who, whenever the opportunity challenges them, can be as nasty and unpleasant as these two worthies.

There is something in the water they drink over there that transforms usually decent hum beings into uncouth, ill-mannered, reckless, unpleasant parliamentarians. Well, not exactly the water. But something. The day they are sworn in, they are instantly swaddled in an extremely comforting and isolating cocoon of privilege and power. They have instant access to millions of shillings in the form of a mortgage, a car grant, and an annual salary that is many multiples of what the lowest paid Kenyan earns.

Wherever they go, doors are flung open and red carpets rolled out for them. Whenever they speak, serious members of the chatterati and civil service pay keen attention. Whenever they demand things, the great unwashed masses bend over backwards to accommodate them. It matters not that they treat their constituents like shit. Now they are mheshimiwa, and mheshimiwa's wish is our command.

Whatever selfish and narcissistic tendencies they posses are usually amplified to the nth degree. They, almost to a man, believe that they deserve to be where they are, that they are there because the people adore them, that they are cleverer than the rest of us, that they are God's choice because the christian bible says leaders are chosen by God. Arrogance and contempt are their watchword. Not even the judges of the High Court or the Inspectors-General of Police can corral their ambitions, power and vision.

As a consequence, it no longer occurs to them that they cannot ride roughshod over is without facing electoral consequence. They cannot scoff at the law without, eventually, made to face the long arm of the law. They are immune to the lessons of political history: eventually, they all fall, and the harder they rode roughshod over us, the harder the fall is. Very rarely will we sympathise with a former mheshimiwa. More likely, we will make them taste what they shoved down our throats, and if they happen to be financially at sixes and sevens, we will make them regret the very day they chose to adorn themselves with a power that wasn't theirs.

We need to learn, again, how to think

I don't think the parliamentarians of the National Assembly will heed the call and #RejectFinanceBill2024. They will tinker. They will v...